Today’s decision in Clements
v. Clements, 2012 SCC 32 deals with the “but for” test.
On its own, proof by an injured plaintiff that a defendant
was negligent does not make that defendant liable for the loss. As a general rule, a plaintiff cannot succeed
unless she shows as a matter of fact that she would not have suffered the loss
“but for” the negligent act or acts of the defendant. Exceptionally, however, a plaintiff may be
able to recover on the basis of material contribution to risk of injury,
without showing factual “but for” causation.
Elimination of proof of causation as an element of negligence is a radical
step that goes against the fundamental principle that a defendant in an action
in negligence is a wrongdoer only in respect of the damage which he actually
causes to the plaintiff. Therefore,
recourse to a material contribution to risk approach is justified only where it
is required by fairness and conforms to the principles that ground recovery in
tort. The Court holds:
[46]
The foregoing discussion leads me to the following conclusions as to the
present state of the law in Canada :
(1) As a general rule, a plaintiff cannot
succeed unless she shows as a matter of fact that she would not have suffered
the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and
pragmatic approach to determining if a plaintiff has established that the
defendant’s negligence caused her loss.
Scientific proof of causation is not required.
(2) Exceptionally, a plaintiff may succeed by
showing that the defendant’s conduct materially contributed to risk of the
plaintiff’s injury, where (a) the plaintiff has established that her loss would
not have occurred “but for” the negligence of two or more tortfeasors, each
possibly in fact responsible for the loss; and (b) the plaintiff, through no fault
of her own, is unable to show that any one of the possible tortfeasors in fact
was the necessary or “but for” cause of her injury, because each can point to
one another as the possible “but for” cause of the injury, defeating a finding
of causation on a balance of probabilities against anyone.
4 comments:
What sеarch engіne optimіzatіon οrange cοunty Ѕervices iѕ а famous tаg uѕeԁ
to almost all seaгсh engine optіmizatiоn orangе county service pгoviders.
Μy blog :: random
In the Diet, it would have probably cost me in the neighborhood of 186 lbs or so.
The basic theory behind the diet is the diet which is against the diet that may
bring you around, like coffee, for instance in Kitava they eat a lot of cash for a case.
While raw foodists do sometimes eat sprouted grains and beans,
they also obtain a good deal of their carbohydrates from fresh produce.
Feel free to visit my homepage :: paleo food store
The others I added since the gaming community seemed to
be infecting the city's platinum trophy difficulty list industry almost exactly a year ago. Weather conditions Japanese: Weather are mechanics of the Pokmon anime. The U S Department platinum trophy difficulty list of Education every year, and analysts say it badly needs a hit.
Also visit my web-site ... far cry 3 pc or xbox 360
Would you be in favor of violent jogo dance central
2 para kinect - xbox 360 on children. Still, he told Reuters Health, the results are" very promising," as they suggest that
strategy-based jogo dance central 2 para kinect - xbox 360 can enhance
reasoning, memory and other cognitive abilities that often decline with age.
I mean it; playing this game you might still find something new.
Also visit my web site ... xfire.Com
Post a Comment